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News on the “loi sur le renseignement” [by General (2S) Marc Watin-Augouard]

For the first time ever, the Constitutional Council has been apprehended by the President of the Republic. The President of the Senate and its 106 members has done the same. For some, it was to raise doubts about the constitutionality of the law on intelligence, for others it was to censor articles they deemed “draconian”.

The legality of intelligence requires a specific law, whose objectives and means implemented respond to a pressing social need, a necessity to public interest, and respects the principle of responsibility. The proportionality between its means and its ends is, with strict supervision through the law of intrusive measures, the governing principle of the Council’s demonstration, either to declare an article of the Constitution, or to censor it.

The law on intelligence is found not to comply with the Constitutional Article L.821-6 of the Code of internal security which instituted for an “operational emergency” allowing, in the event of an imminent threat, implementation of intelligence techniques, without obligation to inform the concerned Minister and without authorization from the Prime Minister, as well as without notice from the national intelligence oversight technical Commission (CNCTR). The imminent threat does not justify such disparity between the respect for privacy and the secrecy of correspondence.

The legality of intelligence has also censored the Article L. 854-1 based on the monitoring of transmitted or received communications abroad. The Council criticizes the law for not having defined the regulations concerning the fundamental guarantees. The reference to a decree from the Council of State on operating conditions, retention and disposal of information, as well as the modalities for exercising control by the CNCTR infringes Article 34 of the Constitution.

Finally, a more technical censorship affects the provisions of Article L. 832-4 in relation to the budget of the CNCTR who must meet certain financial standards.

Opponents of the regulation now expect France’s sentence ruled by the European Court of Human Rights. Yet in 1978 (Case Klass v. Germany) the Court of Human Rights determined that “democratic societies are threatened today by highly sophisticated forms of espionage and by terrorism, and so a State must be able to effectively combat these threats through secret surveillance of subversive elements operating within its territory. ” According to Article 8 paragraph 2 of the European Convention on Human Rights and Fundamental Freedoms, the exceptions to the right are in respect for the right to a private life; correspondence must be lawful, necessary and proportionate to the objective: “There can be no intervention by public authority exercising this right; only if this interference is necessary by law and constitutes a measure which, in a democratic society, is necessary for national security, public safety and the economic well-being of the country, the defense of order and the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.”

Whether or not the Constitutional Council’s role is to judge the conformity of laws, it has not used a different reasoning to declare conformity with the essential law on intelligence.

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